Ever since the Trump administration wrongfully deported Kilmar Abrego Garcia to a torture prison in El Salvador last spring, the president and anti-immigrant henchman Stephen Miller have plainly understood this saga as a crucial test case for the larger MAGA project. How far could they go in snatching people off the streets and placing them outside of U.S. law entirely? To what degree could they get away with wielding armed state terror against undesirables, with minimal to no constraints?
That’s why the latest turn in the Abrego Garcia story—in which a federal judge ordered him released from immigration detention in Pennsylvania—is so momentous. It suggests that at least for now, this test isn’t going how Trump and especially Miller evidently hoped.
The topline news in Judge Paula Xinis’s ruling—the one getting media coverage—is her surprising ruling that no order of removal for Abrego Garcia exists. She ruled his continued detention unlawful, and he’s now been released, though he still faces separate Justice Department prosecution for allegedly trafficking migrants.
But buried in this ruling is even bigger news. It concludes that Abrego Garcia’s treatment throughout has violated due process. Again and again, it scorches the Trump administration’s “extraordinary” and “troubling” handling of this whole case, suggesting it’s been utterly lawless and rife with malicious abuses of power.
The ruling neatly encapsulates the madness of the Trump era. It recounts that Abrego Garcia was removed with scores of others to El Salvador in March, which the administration admitted was an “error” violating an immigration judge’s 2019 “withholding of removal” ruling barring his deportation to that country, where he was born and raised before fleeing to the U.S. as a teenager. After the Supreme Court ruled in April that officials must “facilitate” his return, they dragged their feet, bringing him back eight weeks later. During that time in El Salvador he was tortured.
Here’s where one of Trump’s most flagrant abuses of power now arises. Because a “withholding of removal” order does allow deportation to a third country that agrees to take in the subject, Trump officials have been trying to find one to take him.
But this process, too, has been riddled with venality. Costa Rica has expressed willingness to take in Abrego Garcia for months, a country that Abrego Garcia’s lawyers believe would not jail him or return him to El Salvador (where, as we’ve already seen from his experience there, he’d again face torture and imprisonment). But officials have refused to send him to Costa Rica.
Why not? They won’t meaningfully say. The ruling details months of tortuous negotiations during which the administration tried to deport him to Uganda, Eswatini, Ghana, and Liberia—places where Abrego Garcia feared physical harm or removal to El Salvador.
But officials were unable to carry out removal to these places for various reasons; some countries said they didn’t want him. That left Abrego Garcia in detention for months. And throughout, when prodded by Xinis as to why the government wouldn’t just remove him to Costa Rica, administration lawyers dissembled, stonewalled, and ultimately could not explain the rationale.
This is abominable. By law, immigration detention is not supposed to be about meting out punishment or retribution. It’s supposed to be about facilitating people’s removal. Yet as the ruling details, the administration, by refusing to send Abrego Garcia to Costa Rica despite having that option, did “not appear to have held him to fulfill that purpose.”
That’s polite legalese for a bombshell: Trump officials held Abrego Garcia in detention for months for reasons that remain unexplained rather than remove him to a country where he didn’t fear facing grave danger. We all know what happened here: Trump and Miller plainly decided that sending him to a place he sees as acceptable wouldn’t be sufficiently dehumanizing. Trump had to “win” by sending him to the country of Trump’s choice only.
This is deeply sick public conduct. And there’s evidence that Trump and Miller have seen this throughout as a test case for a darker, vaster project. Recall that after officials admitted deporting Abrego Garcia in error, Miller rushed out to proclaim that there was no mistake at all and that he’d been “sent to the right place.” This wasn’t a good-faith disagreement over what the law said. It was effectively a declaration that the law wouldn’t constrain Trump from sending him to a foreign gulag if he decided to.
Miller has also viciously attacked judges as illegitimate for requiring due process for migrants. Here again this doesn’t reflect genuine legal disagreement; it’s Miller asserting Trump’s authority to inflict state terror without any legal constraints. At one point, Trump even admitted he could bring him back at any point and try him lawfully, but refused: He was leaving Abrego Garcia in that torture prison abroad because—well, because he could.
Meanwhile, numerous government agencies smeared Abrego Garcia as a violent gang member even though they couldn’t produce any evidence of it. Vice President JD Vance stated as fact that Abrego Garcia was a “high-level gang member” who was not in the country lawfully to begin with—both flat out lies that look even worse with this ruling. The administration’s real aim has been to create grounds for immigrants to fear that at any point they might face the wrath of arbitrary, unchecked state power and the threat of disappearance beyond the reach of the law.
Here, a caveat: At times officials have followed the law, ultimately bringing Abrego Garcia back and releasing him this time around under judicial order. But when books are written about this and other travesties, we will likely learn that Miller lost internal battles about how far to push the envelope, with Trump losing interest at key moments or being swayed by other advisors who balked at plunging into full lawlessness. Everything we’ve seen strongly suggests this interpretation, including what was laid bare in Xinis’s extraordinary ruling.
So where does this leave us? In a strange turn, it appears no original order of removal for Abrego Garcia can be found, perhaps because the “withholding of removal” order is all the original judge filed. So on Thursday night, officials found another immigration judge to issue a new order of removal. As Talking Points Memo’s David Kurtz explains, this was also highly cynical, exploiting these judges’ status as executive branch officials to secure a dubious, preordained outcome. And indeed Xinis also temporarily enjoined ICE from taking him into custody on that basis Friday morning.
At this point Abrego Garcia could end up getting deported to Costa Rica, as he’s requested. Or he could remain free on bail in the United States while he faces prosecution for trafficking (and there are ample signs that this too is a malicious prosecution). We don’t know what’s next. It’s all unprecedented.
But here’s what we do know: For now, this saga is showing that certain time-tested legal precedents and norms—habeas corpus, judicial review, professional constraints on lawyers—seem to be acting as a check on tyranny. To the degree that Trump or especially Miller envisioned this as a test—of their ability to spread fear of lawless state terror—the lower courts continue to hold the line. The degree of government persecution inflicted on this day laborer from Maryland remains astounding. But for the time being, what we’re seeing is heartening indeed.
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